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Immigration Reform And Supreme Court Brought To A Halt With Potential 4-4 Split

Supporters of fair immigration reform gather in front of the Supreme Court in Washington, Monday, April 18, 2016. The Supreme Court is taking up an important dispute over immigration that could affect millions of people who are living in the country illegally. The Obama administration is asking the justices in arguments today to allow it to put in place two programs that could shield roughly 4 million people from deportation and make them eligible to work in the United States.

CREDIT: AP/Pablo Martinez Monsivais

This past Monday was a huge day for pro-immigration activists all across the country. From L.A to D.C. and Houston, to Miami, Chicago, and Denver, thousands of immigrants and their supporters participated in various protests all aimed at expressing support for the Obama administration’s executive actions, DAPA and expanded DACA, which could keep as many as four million undocumented immigrants from deportation.

Many traveled to Washington, D.C. as part of the New York Immigration Coalition’s Stand Up for Relief protest. Even Grammy-award winning band “La Santa Cecilia” had been scheduled way in advance to hold a live concert in front of the court building as part of the D.C. demonstration. From undocumented workers and families, to members of Mark Zuckerberg’s, as well as Sophie Cruz, the young girl who made headlines by running to Pope Francis to hand him a letter last year urging him to help protect her parents from deportation, week-long vigils are being held through Friday “to raise awareness of the stark differences between deporting our neighbors and family members and finding a real solution,” as Alida Garcia, Director of Coalitions and Policy at put it.

Inside the courthouse, Monday’s oral arguments were heard before eight justices, with the vacancy left by Justice Antonin Scalia’s death still left unfilled.

In 90 minutes of oral argument, the high court appeared to break along ideological lines, with the court’s four liberals appearing to support the president’s actions and the four conservatives seeming more skeptical. The Obama administration will need the support of one of the court’s conservatives, most likely Chief Justice John Roberts or Anthony Kennedy, in order to take the win. However, both seemed to hit the White House’s lawyer, U.S. Solicitor General Donald Verrilli, with tough questions during the hearing.

According to Yahoo News, Kennedy expressed concern that Obama had exceeded his authority by having the executive branch set immigration policy rather than carry out laws passed by Congress. “It’s as if the president is setting the policy and the Congress is executing it. That’s just upside down,” Kennedy said.

He, along with Roberts, did not provide as much ground as immigration rights advocates would have hoped—especially in terms of whether or not the state of Texas has the right to sue the federal government and whether the president actually has the authority to go around Congress. “What we’re doing is defining the limits of discretion” for who the government can and cannot deport, Kennedy told Verrilli. “And it seems to me that that is a legislative, not an executive, act.”

The court’s more liberal justices, on the other hand, said that Obama’s deferred-action program merely tells undocumented immigrants who qualify that, “you will not be deported unless we change our minds,” Justice Elena Kagan said.

Much of the debate also focused on the “lawful presence” of undocumented immigrants — a phrase which was initially used by the federal government, but which Verrilli insists has no meaning in immigration law. “That phrase, ‘lawful presence,’ has caused a terrible amount of confusion in this case,” Verrilli says. “We are not trying to change anybody’s legal status.”

Roberts and Justice Samuel Alito didn’t buy that explanation. “How is it possible to lawfully work in the United States without lawfully being in the United States?” Alito asked. “I’m just talking about the English language. I just don’t understand it.” Kagan went on to note that the term “lawful presence” was a red herring, suggesting that the administration could “have done the exact same thing without using that phrase.”

Towards the end of an extremely long one-and-a-half-hour debate, Kennedy concluded that perhaps challenging various guidelines was not the best tactical way for Texas to proceed with the lawsuit, and that other approaches might have been more prudent. All in all, the results of Monday’s extended arguments signal that the decision, expected in June, may come in the form a 4-4 tie, leaving the lower court decision in tact but failing to set national precedent.

As numerous protesters continue chanting, cheering, and pleading from the front plaza and sidewalks of the Supreme Court this week, it’s safe to say that whatever happens next in the U.S. vs. Texas case will no doubt cast a serious shadow over the court and the country.

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